Jacob Zuma’s defence appears desperate to exclude evidence seized by the state during searches of Zuma’s offices and residences in August last year — and they may still succeed in doing so.
The Zuma searches were ruled unlawful by the Durban High Court after Zuma contested the validity of the search warrants, but most of the evidence obtained was nonetheless incorporated into a massive forensic report produced for the state by audit firm KPMG.
The report is crucial to the state’s case and was finally made available to the defence when the trial resumed in the Pietermaritzburg High Court on Monday.
The report remains under wraps until the trial begins, but it includes material seized from Zuma that one source described as ‘very significantâ€.
The decision by the state to include the contested material was fiercely criticised during argument over the state’s application to postpone the case until next year.
Defence counsel for Zuma and his co-accused, the French defence company Thint, slammed the state’s use of material that was unlawfully obtained, and labelled its actions as being in contempt of the Durban court ruling that the searches were unlawful.
Counsel for Thint, advocate Nirmal Singh, said the state’s decision to hand over the contested material to a third party, namely KPMG, was even worse.
The prosecution appealed the ruling that the searches of Zuma and his former attorney Julie Mohamed were unlawful. A similar raid on Thint was ruled lawful by the Pretoria High Court.
The prosecution has argued that the trial court could still have access to the disputed documents and make a finding that they should be admitted in the interests of justice, even though they were, on the face of it, obtained unlawfully.
Prosecution leader Billy Downer said the legal effects of the appeals did indeed place the state in a position to use the evidence and have the trial court rule on its admissibility.
This is one of several key issues to emerge from this week’s intense legal battle between the prosecution and the defence, and on which Judge Herbert Msimang will have to rule.
Kemp was forced to admit that the initial trial date of July 31 did not constitute undue delay of Zuma’s trial, which means he now has to demonstrate how a further delay would create unfair prejudice to his client.
What has also emerged is that Kemp is prepared to proceed with the trial based on the initial indictment provided by the state.
‘Our position is that if you proceed against us in terms of that [original] indictment, we have no problem. Then we can continue within a relatively short period.â€
This indictment, which was served before the raids were carried out in August last year, was essentially a mirror image of the charges against Shabir Shaik, but does not include any of the information obtained by the prosecution’s investigation of Zuma’s financial affairs after 2002. Crucially, Shaik admitted in court last year that payments on behalf of Zuma had continued even while his corruption trial was proceeding.
The exclusion of new evidence seized last year would create a time gap for the state. The absence of documents from Zuma’s side of the triangle will also create serious technical difficulties for the prosecution. The defence clearly appreciate this.
But Kemp made it plain that the defence would oppose any significant change to the present indictment. He told the court: ‘Our complaint is against the purpose of the postponement; it is designed to adduce evidence so they can make a different case with different evidence.â€
Kemp argued that if the state wanted to use the new evidence, it should either withdraw existing charges and wait until the various challenges were definitively decided — which could take two years — or proceed with the current case and bring fresh charges based on the new evidence at a later stage.
The latter suggestion is probably impossible: the contested evidence relates to the same charges made by the current indictment, and the prosecution would likely be accused of trying to charge Zuma twice on the same matter.
The prosecution has tendered a new expedited timetable, offering to deliver an amended indictment by October 15, but they face a significant problem in trying to convince the judge that this is feasible.
Downer said challenges to evidence were a feature at every trial, but should not be used as a reason not to begin the trial. ‘We have given it our best shot. We are prepared to take our chances.â€
Msimang will have to weigh up a defence proposal to strike the case from the roll, which will likely lead the state to reinstitute charges in October anyway — or grant the postponement. He will give judgement on September 20.